Bruen Footnote 9 Is Not a Carve-Out From Text and History

A September 22, 2026, en banc Ninth Circuit decision has renewed a critical Second Amendment debate: Does a single footnote in New York State Rifle & Pistol Association v. Bruen exempt certain firearm regulations from the Supreme Court’s text-and-history test? In Yukutake v. Lopez, the court upheld Hawaii requirements involving handgun-acquisition permits and post-purchase inspection. A forceful dissent argued that Bruen Footnote 9 cannot be transformed into a safe harbor for restrictions lacking support in America’s historical tradition. For gun owners, firearms dealers, and anyone who values the right to keep and bear arms, the distinction matters.

What Bruen Footnote 9 Actually Says

In its 2022 Bruen decision, the Supreme Court held that the Second Amendment’s plain text protects carrying a handgun in public for self-defense. New York then bore the burden of proving that its restriction was consistent with the nation’s historical tradition of firearm regulation. The state failed to establish a tradition of broadly prohibiting public carry of commonly used firearms or requiring ordinary citizens to demonstrate a special need for self-defense.

The Court added footnote 9 while discussing the 43 states that then employed shall-issue licensing systems. Under those systems, a general desire for self-defense was sufficient to seek a carry permit, and licensing decisions generally rested on objective criteria rather than an official’s discretion. The footnote said nothing in the Court’s analysis should automatically invalidate those regimes.

That was not an unconditional endorsement. The Court warned that any permitting system could be used abusively and expressly left the door open to challenges involving lengthy processing delays or exorbitant fees that deny ordinary citizens their right to carry. Readers can review the language in the Supreme Court’s official Bruen opinion.

What the Ninth Circuit Upheld in Yukutake

Hawaii requires a handgun purchaser to obtain an acquisition permit that becomes void unless the transaction is completed within 30 days. The state also requires people acquiring covered firearms to present them at a police station for physical inspection within five days of acquisition. The challenged provisions are found in Hawaii Revised Statutes §§ 134-2(e) and 134-3(c).

The en banc Ninth Circuit upheld those requirements in Yukutake v. Lopez. According to the detailed analysis of the Yukutake decision, the majority relied in part on footnote 9 when evaluating Hawaii’s objective licensing structure.

The difficulty is that Hawaii’s rules concern acquiring and inspecting a handgun, not obtaining a license to carry one in public. They also operate after an applicant has completed a background check, firearm training, and other requirements and has received a permit to purchase. Those factual differences drove the dissent’s conclusion that the regulations fall outside the limited public-carry discussion addressed by Bruen Footnote 9.

Judge Nelson’s Text-and-History Objection

Judge Ryan Nelson dissented, joined by Judges Daniel Bress, Lawrence VanDyke, Bridget Bade, and Danielle Forrest. The dissent rejected the proposition that objective rules within a shall-issue system are presumptively constitutional. In its view, footnote 9 neither created a separate constitutional framework nor shifted the burden to citizens to prove that a regulation had been put toward abusive ends.

Under Bruen, the initial question is whether the Second Amendment’s plain text covers the regulated conduct. If it does, the government must show that its law is consistent with the nation’s historical tradition of firearm regulation. The dissent reasoned that acquiring a firearm falls within the constitutional protection because a person ordinarily cannot keep an arm without first acquiring it.

The next step should therefore be a historical inquiry—not an exemption based on a footnote concerning public-carry permits. The dissent emphasized that Hawaii’s 30-day expiration and five-day inspection provisions do not determine whether an applicant is a law-abiding, responsible citizen eligible to carry a handgun. It also stated that neither challenged rule was longstanding when Bruen was issued in 2022.

Why the Dispute Matters to Gun Owners

Reading Bruen Footnote 9 as a broad carve-out would allow governments to label burdensome firearm rules objective and potentially avoid the historical analysis required by the Supreme Court. That approach is especially concerning when regulations affect the ability to acquire a handgun, because acquisition is a practical prerequisite to exercising the right to keep arms.

The dissent also placed the case within a larger conflict between Hawaii and the Supreme Court’s Second Amendment precedents. It cited Justice Clarence Thomas’s 2024 statement respecting the denial of certiorari in Wilson v. Hawaii, which referenced Hawaii’s alleged blatant defiance of the Supreme Court. It also noted the Hawaii Supreme Court’s 2026 Granillo opinion, which criticized federal Second Amendment jurisprudence, and repeated the fundamental principle that local attitudes cannot shrink Bill of Rights protections applied to the states through the Fourteenth Amendment.

As of September 30, 2026, the en banc ruling is an important decision within the Ninth Circuit unless later altered through further judicial review. Gun owners in Hawaii should follow current state procedures while monitoring any subsequent litigation. This article is informational and not individual legal advice.

Stay Informed and Defend the Second Amendment

Bruen Footnote 9 matters because constitutional rights should not depend on an expansive reading of language the Supreme Court used to discuss non-abusive public-carry licensing. Courts should apply the same text-and-history framework consistently, with the government carrying its burden when protected conduct is restricted.

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